BEFORE THE ILLINOIS POLLUTION CONTROL BOAR~~~

PEOPLE OF THE STATE OF ILLINOIS,              

DEC 1 

It

200It

Complainant,                    

STATE OF ILLINOIS

Pollution Control Board

v.

)

No. PCB 96-98

SKOKIE VALLEY ASPHALT, CO., INC.,

EDWIN L. FREDERICK, JR.,

individually and 

as

owner and

President of Skokie Valley Asphalt

Co., Inc., and

RICHARD J. FREDERICK,

individually and as owner and

Vice President of

Skokie Valley Asphalt Co., Inc.,

Respondents.

NOTICE OF FILING

TO: See Attached Service List

PLEASE TAKE NOTICE that on December 14, 2004, we filed with

the Illinois Pollution Control Board Complainant’s 

Response 

and

ObjectiOn to Respondents’ Motion to Stay 

Payment 

of Penalty Under

Board Order of Septeiither 2, 2004, 

a true and correct copy of

which is attached and hereby served upon you.

Respectfully submitted,

LISA MADIGAN

Attorney General

State of Illinois

BY:_____

MITCHELL L. COHEN

Assistant Attorney General

Environmental Bureau

188 W. Randolph St., 20th Floor

Chicago, Illinois 60601

(312) 814-5282

SERVICE LIST

Mr. David O’Neill

Mr. Michael B. Jagw±el

Attorneys at Law

5487 North Milwaukee

Chicago, Illinois 60630

Ms. Carol Sudman

Hearing Officer

Illinois Pollution Control Board

600 S. Second Street, Suite 402

Springfield, Illinois 62704

BEFORE THE ILLINOIS POLLUTION CONTROL 

BOARD ~    

‘~FF~ED

PEOPLE OF THE STATE OF ILLINOIS,             

DEC lIt 2OO~

Complainant,         

)

STATEOFILLINOIS

v.

)

No. PCB 96-98 

Pollution Control Board

SKOKIE VALLEY ASPHALT, CO., INC.,

an Illinois corporation,

EDWIN L. FREDERICK, JR.,

individually and as owner and

President of Skokie Valley Asphalt

Co., Inc., and

RICHARD J. FREDERICK,

individually and as owner and

Vice President of

Skokie Valley Asphalt Co., Inc.,

Respondents.

COMPLAINANT’S 

RESPONSE AND OBJECTION TO

RESPONDENTS’ MOTION TO STAY PAYMENT OF PENALTY UNDER

BOARD ORDER OF SEPTEMBER 2, 2004

Complainant, PEOPLE OF THE STATE OF ILLINOIS, by LISA

MADIGAN, Attorney General of the State of Illinois, pursuant to

Section 101.500 of the Board’s Procedural Regulations, 35 Ill.

Adm. Code 101.500, responds and objects to Respondents’ Motion to

Stay Payment of Penalty Under Board Order of September 2, 2004.

In response and objection to Respondents’ Motion, the People

state as follows:

INTRODUCTION

1. On September 2, 2004, the Board issued an Opinion and

Order (“September Order”) finding Respondents violated the

1

Environmental Protection Act and Board Regulations.1 This

September Order included a finding 

“ . . .

that Edwin and Richard

Frederick are personally liable for the activities of Skokie

Valley.”2 It also included a finding 

“ . . .

that Respondents

committed2. willful,Based

on

knowing,the

evidence,or

repeatedthe

Boardviolationsordered Respondentsin

this case.”to3

pay a civil penalty of $l53,000.~

3. Respondents were ordered to pay the civil penalty “nb

later than October 18, 2004 

. . . . “~

~i.Respondents did not ask to stay the enforcement of the

September Order before October 18, 2004.

5. Respondents did not ask to stay payment of •the penalty

required by the Board in the September Order before October 18,

2004.

6. And, Respondents did not pay the civil penalty ordered by

the Board by October 18, 2004.

RESPONDENTS’ 

MOTION IS UNTIMELY

7. If Respondents had any legal, or factual basis for filing

a Motion to Stay Enforcement of a Board Order, or a Motion to

People v. Skokie Valley Asphalt Co. et al., PCB 96 

98

(September 2, 2004)

~ at 11.

Id. at 23.

~ Id. at 1, 23, and 24.

~ Id. at 24.

Stay Payment of a Civil Penalty, such a Motion was due before

October ~  the ordered deadline, not after Respondents are in

constructive contempt of a Board Order.

8. Respondents’ excuse for failing to file a Motion to Stay

when they filed their Petition for Review defies logic.

9. In this Motion to Stay Respondents claim they 

“ .

required a clear understanding of whether or not the Opinion and

Order of September 28, 2004, was a final order for a number of

reason including a need to know whether or not it would be timely

to file a motion to stay enforcement of the September 28, 2004

Opinion• and Order. 

10. Why does that statement, not even including all the

mistakes, defy logic? If the Board’s September Order was a final

order as Respondents thought when they filed their Petition for

Review, then they had at least some basis (pending appeal) to

file a Motion to Stay and chose not to. If the September Order

was not final, then there is no basis for such a motion.7 Whether

the September Order was final, or not, Respondents chose not to

file any motion regarding payment of the penalty before the

penalty was due.

11. Now, Respondents know the September Order was not final

The Opinion and Order should have the date of September 2,

2004. Respondents’ Motion to Stay, paragraph 3.

~ 35 Ill. Adm. Code 101.906(c).

3

and six weeks after the penalty was due they file a Motion to

Stay without citing any legal basis, or offering any factual

basis to justify such a motion.

RESPONDENTS’ MOTION TO STAY IS DISINGENUOUS

12. Respondents claim “ibn reliance on the Order of October

21, 2004, the Respondents determined that the filing of a motion

to stay payment of the penalty 

. . .

was neither timely nor

necessary

13. Yes, the Board issued an order October 21, 2004,~but at

that point Respondents penalty payment was overdue and

Respondents had no expectation that the penalty would be stayed

for any14.reasonTo

saysincenow,

Respondentssixweeks

afterneverpaymentasked offorthesuchpenaltyrelief.’-was0

due and knowing full well that Respondents did not comply with

the Board’s September Order, that they relied on the October

Order even without making a request to stay the payment is

disingenuous.

CONCLUS ION

15. There is no legal or factual basis for Respondents’

Motion to Stay Payment of the Penalty.

8Respondents’ Motion to Stay, paragraph 6.

~ People v. Skokie Valley Asphalt Co. et al., PCB 96 

98

(October 21, 2004)

See also, Complainant’s Motion to Void the Board’s October

21, 2004, Order.

4

16. Respondents failed to comply with the Board’s September

Order.

17. Respondents offer no authority for the filing, or the

granting of their Motion to Stay.

18. Under such circumstances, Complainant objects to the

granting of Respondents’ Motion to Stay.

WHEREFORE, Complainant, the People of the State of Illinois,

respectfully requests this Board deny Respondents’ Motion to Stay

Payment of Penalty Under Board Order of September 2, 2004. In the

alternative, if the Board either grants Respondents’ Motion to

Stay, or determines that Respondents’ Motion to Stay is moot

because the Board had jurisdiction to stay payment of the penalty

in its October 21, 2004, Order, then Complainant respectfully

5

requests that such stay be treated as a stay of judgment pending

appeal and require Respondents to post a bond 

“ . . .

in an

amount sufficient to cover the amount of the judgment, interest

and costs.1’

PEOPLE OF THE STATE OF ILLINOIS,

ex

rel. LISA MADIGAN,

Attorney General of the

State of Illinois,

By:

_____

MITCHELL L. COHEN

Assistant Attorney General

Environmental Bureau

188 W. Randolph St. 

20th Fl.

Chicago, IL 60601

(312) 814-5282

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~‘

Sup. Ct. R. 205(a) and (f).

6

CERTIFICATE OF SERVICE

I, MITCHELL COHEN, an Assistant Attorney General, certify

that on the ~  day of December, 2004, I caused to be served by

First Class Mail the foregoing Complainant’s Response and

Objection to Respondents’ Motion to Stay Payment of Penalty Under

Board Order of Septexnber 2, 

2004, to the parties named on the

attached service list.

Attorney General

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